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AllofMP3: We’re not going anywhere

In a last-minute press conference, US representatives of AllofMP3.com insist …

After receiving years of press so bad that the US Trade Representative is now calling for its head by name, AllofMP3.com has launched a press offensive of sorts. After giving their first press conference earlier this year to counter the mounting criticism, AllofMP3 has given another one, this time to address the new bilateral trade agreement between the US and Russia that looks set to put them out of business.

John Kheit, an IP attorney for Chadbourne & Parke in New York, is representing AllofMP3, and he had one basic point to make in the wake of the trade agreement: AllofMP3 is legal, and it's not going anywhere. Although the agreement indicates quite clearly that the Russians have agreed to brand AllofMP3 an illicit site, Kheit points out that diplomats can talk as much as they want, but AllofMP3 isn't illegal until judges decide. "Legality is not decided by a legislative branch or an executive branch. It's decided by a court," he said in response to a question from Ars Technica. And no such ruling has been handed down.

The company also believes it is legal for US consumers to use, and has issued a lengthy statement outlining its position.

Kheit believes that AllofMP3 is currently legal under Russian copyright law, and he points to Article 39 of that law as proof. The article, headed "Use of a Published Phonogram for Commercial Purposes Without Consent from the Phonogram Producer and the Performer" in its English translation, appears to allow collection societies like ROMS to issue licenses for music, even when they do not have the permission of the copyright holder. That right only applies in three circumstances, though: public performance, broadcasting, and the "communication of the phonogram to the public by cable." It does not cover "the communication of the phonogram to the public." What does that mean, exactly? We'll leave it to Russian IP attorneys to work that out, but section 39 provides the legal basis for AllofMP3's claims of legitimacy.

The bilateral trade agreement specifies that Russia will change its laws by the middle of 2007 so that collection societies cannot act without the approval of copyright holders. A plain reading of this condition indicates that AllofMP3, whether legal now or not, will no longer be able to offer most of its music once the law is changed. Still, Kheit insists, the company will abide by the law and will adapt as conditions warrant.

Also of interest was the claim that AllofMP3 has not been as badly damaged by the inability to accept Visa and MasterCard payments as many would suspect. That's because most users have credit with the site and only use it over time. But as it grows increasingly difficult to add more money to one's account, the company will start to feel the squeeze in the months to come unless they can work out alternative payment systems that are as safe and easy as paying directly by credit card.